Corporate Restructuring and Insolvency procedures - Cayman Islands

When a corporate borrower faces financial difficulties in the Cayman Islands, there are a variety of restructuring and insolvency options available.

The three principal restructuring and insolvency regimes for companies under Cayman Islands law are: 1.

2.

3.

the appointment of restructuring officers (which results in a moratorium on unsecured creditor action); a scheme of arrangement (either standalone or in conjunction with the appointment of restructuring officers); and liquidation (including provisional liquidation), also known as winding up.

the formal insolvency or restructuring procedures may be appropriate, i.e. the restructuring of the company on an informal, consensual basis by agreement between the company and its principal lenders and / or other creditors. Alternatively, a restructuring or rescue may be conducted via a formal scheme of arrangement (potentially in tandem with the appointment of restructuring officers).

If the company has no realistic chance of being rescued, it may be more appropriate to put the company into liquidation, and for a liquidator to realise the assets (which may include selling operating businesses or subsidiaries) and to distribute the proceeds to creditors and, if relevant, shareholders.

A secured creditor is entitled to enforce its security in accordance with its terms (which may include the contractual right to appoint a receiver) notwithstanding the commencement of any of the above proceedings.

Enforcement of Security

Insolvency and restructuring procedures in the Cayman Islands are primarily governed by the Companies Act (As Revised) (the "Companies Act") and the Companies Winding Up Rules (As Revised) (the "CWR"). A number of other enactments may also be relevant, including the Insolvency Practitioners' Regulations (As Revised) and the Foreign Bankruptcy Proceedings (International Cooperation) Rules (As Revised).

(a) legal and equitable mortgages; (b) fixed and floating charges; and (c) legal and equitable assignments.

The Financial Services Division of the Grand Court of the Cayman Islands (the "Court") is responsible for handling corporate insolvency and restructuring proceedings in the Cayman Islands.

Ultimately, the most appropriate procedure will depend on whether there is a business to be rescued.

If so, an informal rescue or workout outside of any of

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The main forms of security used in practice under Cayman Islands law are:

For creditors who have taken security, it is possible to enforce certain security rights without a Court order (or, depending on the circumstances, the appointment of a receiver). The appropriate method of enforcement will depend on the type of security granted, the contractual terms and the particular case in question.

Cayman Islands law recognises the concepts of a trust and a security power of attorney and it is possible to utilise a trust or a security power of attorney as a form of security.

Receivership Receivership is essentially a self-help remedy available to secured creditors. It is not a collective insolvency procedure but a method by which a secured creditor can enforce its security, realise the assets secured and obtain repayment of the debt outstanding. The receiver appointed acts principally in the interests of their appointor and not for the general body of creditors.

A receiver may be appointed by the secured creditor in accordance with the terms of the security document pursuant to which the appointment is to be made and without an order of the Court.

The powers granted to a receiver are derived from the security document(s) pursuant to which the receiver is appointed. The powers are usually wide and should generally enable the receiver to do all things necessary to realise the secured property for the benefit of the secured creditor.

Receiverships in the Cayman Islands are (with the exception of registered land) governed exclusively by the terms of the security document(s) and the common law. Other than the Registered Land Act (As Revised), which contains provisions in respect of the appointment of receivers in relation to registered land, there are no legislative provisions governing receiverships.

Schemes of Arrangement Schemes of arrangement involve a compromise or arrangement between a company and its creditors or members (or any class of them). In an insolvency or potential insolvency situation, schemes are principally used to: (a) restructure the company's debts when the company is in financial difficulties, with a view to the company continuing its operations (either on a standalone basis or in conjunction with the appointment of restructuring officers); or

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(b) reach a compromise with creditors following commencement of liquidation (the scheme being used as the mechanism for making distributions in the liquidation).

No protection from creditor action is afforded if a scheme of arrangement is used outside of liquidation or the appointment of restructuring officers. In the restructuring context, if a moratorium is likely to be beneficial, consideration should be given to a scheme of arrangement being used in conjunction with the appointment of restructuring officers (see further below).

A scheme may be initiated, on application to the Court, by the company itself (acting through its directors or a suitably authorised liquidator or restructuring officer), or any creditor or member. It should be noted that while a creditor or member may initiate the scheme process, ultimately the company has to agree to the proposals. The terms of the scheme will vary from case to case; it is essentially a commercial deal between the company and its creditors and / or members. A scheme could, for example, vary the contractual rights of creditors including the amounts owed to them, the repayment dates or the methodology for determining their claims, and / or involve a complete write-off of debt and / or a debt for equity swap.

Where there are different classes of creditors or members involved, each class is required to hold separate meetings to vote on the scheme proposals. The scheme will be approved by: (i)

(ii)

the company's creditors, if a majority, i.e. over 50%, in number, representing 75% in value of each class of creditors; and / or the company's members, if 75% in value of each class of members,

present and attending, either in person or by proxy, vote in favour of the scheme.

Once approved, the scheme will be required to be sanctioned by the Court and delivered to the Registrar of Companies to become binding on all

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affected parties, regardless of whether and how they voted at the class meetings. Essentially, the Court will sanction a scheme where the statutory provisions have been complied with and the arrangement is one that an intelligent and honest person, acting in respect of their interests, might reasonably approve.

Restructuring Officers (Restructuring Moratorium) Where a company is in financial distress, the directors may wish to explore a potential restructuring of the company's debts in an effort to avoid liquidation. To that end, where a company is or is likely to become unable to pay its debts, it may present a petition for the appointment of restructuring officers to obtain breathing space from unsecured creditor action within which to explore a restructuring (a restructuring moratorium). Creditors are not permitted to present a petition for the appointment of restructuring officers.

A moratorium on unsecured creditor claims will apply as soon as the petition for restructuring officers is filed: (a) which gives the company immediate breathing space in which to negotiate a restructuring with its creditors; and (b) the moratorium, as a matter of Cayman Islands law, has worldwide effect.

As with all Cayman Islands insolvency and restructuring proceedings, the appointment of restructuring offers does not give rise to a stay on the enforcement of security by secured creditors.

Restructuring officers may be appointed where the company: (i)

(ii)

is or is likely to become unable to pay its debts (a commercial cash flow test with an element of futurity); and intends to present a compromise or arrangement to its creditors.

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The appointment of restructuring officers enables a company to obtain the protection of a moratorium and negotiate with creditors within that safety net.

There must though be a genuine intention to explore a restructuring and evidence to demonstrate this.

The restructuring may be implemented through a Cayman Islands scheme of arrangement (see above), a foreign restructuring proceeding (for example US Chapter 11 proceedings, an English or Hong Kong scheme or arrangement) or a consensual deal with creditors.

Restructuring officers will be independent Courtappointed fiduciaries who will supervise the restructuring process. A restructuring officer must be a qualified insolvency practitioner and will be an officer of the Court. A foreign insolvency practitioner may be appointed as a restructuring officer but there must always be one Cayman Islands practitioner appointed.

The functions and powers of a restructuring officer will be a product of what the Order appointing them permits. It is a flexible remedy - the Court can tailor the terms of the Order to meet the purpose for which the restructuring officer is being appointed.

For example, the restructuring officer can play a light role, leaving the management to continue dayto-day operations (effectively a debtor in possession proceeding), while the restructuring officer provides an independent, focused and specialist oversight role in the company's restructuring. This can involve vetting a restructuring plan which has been formulated, providing an independent and impartial voice in negotiations with creditors or assisting the company in coming up with a restructuring plan from the ground up. However, on the other hand, there may be circumstances where it is appropriate to divest the management of their powers with the restructuring officer taking over management and performing a much more active role. It is a factsensitive analysis and it will ultimately be for the Court to determine what is most appropriate.

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Provisional Liquidation 1.

A provisional liquidator may be appointed on the application of a creditor or contributory to preserve a company's assets or prevent mismanagement (effectively to hold the ring and to maintain the status quo) pending the hearing of the winding up petition and the appointment of liquidators.

On the appointment of a provisional liquidator, a moratorium on unsecured creditor action arises as no action or proceeding can be commenced or continued against the company or its assets without leave of the Court. Importantly, there is no stay on the enforcement of security by secured creditors.

The company by its directors may also apply for the appointment of provisional liquidators: (a) in response to any winding up petition filed by a creditor or contributory; or (b) on its own initiative, by filing a winding up petition and then making the application, (however, if the company is incorporated on or before 31 August 2022, in both cases above only where the company has obtained a resolution of its shareholders or a provision in the company's articles of association allows the directors to present a winding up petition on its behalf, but in the case of companies incorporated after 31 August 2022, the directors will be allowed to do so unless the articles provide otherwise).

The Court may appoint provisional liquidators on the application of the company in any case where it considers it appropriate to do so. Provisional liquidators may still be appointed on the application of the company to pursue a restructuring and whether it would be appropriate to do so will depend on the circumstances.

2.

voluntary liquidation (with and without the supervision of the Court); or official liquidation (winding up by the Court).

Voluntary Liquidation A voluntary liquidation is generally commenced by a members' special resolution at an extraordinary general meeting, during which one or more liquidators are required to be appointed for the purpose of winding up the company's affairs and distributing the company's assets. A voluntary liquidation may also commence automatically on a specified date or the happening of a specified event pursuant to any express terms to that effect in a company's articles of association.

A voluntary liquidator must apply to the Court for an order that the liquidation proceed under the supervision of the Court unless all of the directors of the company in question sign a declaration of solvency (in the prescribed form) within 28 days of the commencement of the liquidation. The declaration of solvency must confirm that a full enquiry into the company's affairs has been made and that, to the best of the directors' knowledge and belief, the company will be able to pay its debts in full together with interest within a period not exceeding 12 months from the commencement of the liquidation. The voluntary liquidator, any creditor or contributory may also make an application for the liquidation to continue under the Court's supervision even where a declaration of solvency has been made by the directors - whether such an application is appropriate will depend on the facts.

Criminal and / or civil sanctions may be applied against any director who knowingly makes a declaration of solvency without having reasonable grounds for believing that the company is in fact able to pay its debts in full.

Liquidation Liquidation (or winding up) is the dissolution procedure for companies under Cayman Islands law. Liquidation can take one of two forms:

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No specific qualifications are required to serve as a voluntary liquidator. There is no automatic moratorium from creditor action in a voluntary

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liquidation because a company in voluntary liquidation ought to be solvent.

When a voluntary liquidation is brought under the supervision of the Court, it will continue as if it were an official liquidation and the requirements of an official liquidation (including the requirements as to the qualifications and independence of the liquidator) will apply.

Official Liquidation Any creditor (including a contingent or prospective creditor) or any contributory may present a petition to the Court for a compulsory winding up of the company.

Where the company is incorporated on or before 31 August 2022, the directors may present a winding up petition on behalf of the company but only: (a) with a resolution of the company's shareholders; or (b) if specifically permitted to do so by the company's articles of association.

shareholders and all dispositions of the company's property made between the date of presentation of the petition and the order for winding up (and following the order for winding up) are void unless the Court otherwise directs.

Once the winding up order has been made no action or proceeding can be commenced or continued against the company or its assets without leave of the Court. However, there is no stay on the enforcement of security by secured creditors.

Regardless of whether the liquidation is a voluntary liquidation or an official liquidation, the liquidator's role is to wind up the affairs of the company, realise the assets of the company, agree creditors' claims and distribute the assets in the statutory order of priority. The appointment of a liquidator will displace the directors save to the extent (in the case of a voluntary liquidation) that the company, by resolution of the members or the liquidator, sanctions the continuance of the directors' powers.

The Court has the discretion to make a winding up order in a number of specified circumstances, including, among others, where it is proven that the company is unable to pay its debts (while the statutory test is not "unable to pay its debts as they fall due" the Cayman Islands Court of Appeal has held that a cash flow test, as a test of commercial insolvency, includes an element of futurity), or where the Court is of the opinion that it is just and equitable that the company should be wound up (balance sheet insolvency can be used as a ground to wind a company up on the just and equitable basis).

The Companies Act provides for the setting off of mutual claims between the debtor and the creditor provided that those claims arose prior to the commencement of the liquidation and the creditor did not have notice that a petition for the winding up of the debtor was pending at the time such claims arose. However, this is subject to provisions in the Companies Act which provide that contractual setoff (or no set-off) and netting provisions contained in the relevant agreements trump the insolvency setoff rules. For example, a no set-off provision in a promissory note (effectively stipulating that all payments made by the borrower to the lender are to be made without set-off) will be recognised and displace the statutory rights of set-off for the borrower that would otherwise apply in insolvency.

Generally speaking, a company's liquidation payments can be expected to be made following the statutory order of priorities, a high level summary of which (excluding the ranking of secured creditors) is as follows:

Where a winding up order is made, all transfers of shares or alteration in the status of the company's

(a) costs and expenses incurred during the appointment of any restructuring officer

For all companies incorporated after 31 August 2022, the directors may present a winding up petition unless the company's articles of association provide otherwise.

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(b) (c) (d) (e) (f) (g) (h)

(including the restructuring officer's remuneration); costs and expenses of the liquidation (including the liquidators' remuneration); preferential debts pursuant to the Companies Act; unsecured, unsubordinated provable debts (e.g. ordinary unsecured creditors); subordinated creditors; post-liquidation interest (where the liquidation lasts more than six months); shareholder claims pursuant to unpaid redemptions; and shareholders.

In an official liquidation, the Court will need to be satisfied that the proposed liquidator is independent and has the qualifications to fulfil their functions.

Once the liquidation process is completed, the company will be dissolved and it will not be possible to restore the company to the register.

Part XVII of the Companies Act (together with the Foreign Bankruptcy Proceedings (International Cooperation) Rules (As Revised) contains specific provisions allowing the Court to recognise and provide assistance to foreign insolvency and restructuring proceedings that have been commenced in the jurisdiction where the company is incorporated.

Most companies incorporated in the Cayman Islands conduct their business and hold assets outside of the Islands. Accordingly, the company may be subject to both insolvency or restructuring proceedings in a foreign jurisdiction and insolvency or restructuring proceedings in the Cayman Islands.

In such cases, the CWR make it the duty of the Cayman Islands liquidator (or restructuring officer) to consider whether it is appropriate to enter into a protocol with the foreign officeholder. Such a protocol will need to be approved by the Court and the relevant foreign court in order to become binding.

Cross-Border Issues The Cayman Islands has not adopted the UNCITRAL Model Law on Cross Border Insolvency.

The Court has jurisdiction to make a winding up order in respect of a company incorporated outside of the Cayman Islands which: (a) has property located in the Cayman Islands; (b) is carrying on business in the Cayman Islands; (c) is the general partner of a limited partnership; or (d) is registered as a foreign company in the Cayman Islands.

The Judicial Insolvency Network's Guidelines for Communication and Cooperation between Courts in Cross-Border Insolvency matters and the American Law Institute / International Insolvency Guidelines Applicable to Court-to-Court Communications in Cross-Border Cases (together, the "Guidelines") were adopted by the Court on 31 May 2018 by way of Practice Direction No.1 of 2018. Cayman Islands officeholders are therefore required to consider, at the earliest opportunity, whether to incorporate some or all of the Guidelines either: (i) (ii)

The Court also has specific jurisdiction to wind up the business of a licensed foreign bank, trust or insurance company on the application of the Cayman Islands Monetary Authority pursuant to the Banks and Trust Companies Act (As Revised) and the Insurance Act (As Revised).

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into an international protocol to be approved by the Court; or an order of the Court adopting the Guidelines.

There is no difference in treatment between foreign and domestic creditors in insolvency proceedings commenced in the Cayman Islands. At present, the Cayman Islands are not a signatory to any treaties on international insolvency.

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Corporate Restructuring & Insolvency Contacts Cayman Islands | Legal Services Cayman Islands

Cayman Islands

Cayman Islands

James Eldridge +1 345 814 5239 james.eldridge@maples.com

Caroline Moran +1 345 814 5245 caroline.moran@maples.com

Nick Herrod +1 345 814 5654 nick.herrod@maples.com

Cayman Islands

London

Hong Kong

Christian La-Roda Thomas +1 345 814 5577 christian.la-rodathomas@maples.com

Luke Stockdale +44 20 7466 1724 luke.stockdale@maples.com

John Trehey +852 2971 3014 john.trehey@maples.com

Hong Kong

Hong Kong

Aisling Dwyer +852 3690 7449 aisling.dwyer@maples.com

Nick Stern +852 3690 7494 nick.stern@maples.com

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